Judgment

AYYANGAR, J.: On March 27, 1954 the three Kapurs - who are the respondents before us - filed original Suit No. 29 of 1954 before the District Judge, Bangalore against the 3 appellants who are brothers, for the recovery of over Rs. 50,000/- and subsequent interest and costs due on a simple mortgage. Before the suit came on for trial the parties filed a memo of compromise dated September 30, 1955 and they prayed that the suit may be decreed in terms thereof. The Court accepted the application and passed a decree as prayed for the order reading:

"It is ordered and decreed that the plaintiff s suit be and the same is hereby decreed as per terms of the compromise, the copy of which is hereunto annexed."

The terms of the Razinama ran as follows:

"1. That the defendants herein agree to a decree being passed as prayed for.

2. That the mortgaged properties are hereby sold for the amount of the decree in full satisfaction thereof. The defendants will execute a regular sale within ten days from this date.

3. That the mortgaged properties are here by put in possession of the plaintiff (decree-holder) by the 3rd defendant (judgment-debtor) and judgment-debtor 1 and 2 agreeing to pay rent at Rs. 75 each for the two shops bearing Nos. 12 and 14 respectively, Godown Street, Bangalore City in their actual occupation and by attornment of the other properties in the occupation of the other tenants.

4. That on the judgment-debtors or their nominees tendering the aforesaid decree amount through court or otherwise within the aforesaid one year from the date of the decree, the decree holders bind themselves to reconvey the properties which are sold to them under this rajinama at their cost provided it is distinctly agreed that time is essence of the contract and provided also that if the judgement-debtors default in paying the rents as aforesaid on or before the 15th of any month they will lose the concession hereby offered to them of having reconveyance of the properties in one year s time.

5. Attachment on the properties belonging to the 2nd and 3rd defendants obtained before judgment stands hereby raised.

6. The defendants hereby assure that the properties hereby sold are not subject to any attachment. In the event of any attachment subsisting on the properties it is hereby agreed that the mortgage security shall not be merged by the sale."

Broadly stated, the question raised in this appeal relates to the executability of cl. 2 of this compromise decree but before examining this contention it is necessary to state a few facts. It would be noticed that under the second sentence of Cl. 2 the appellants had to execute a regular sale-deed within ten days from September 30, 1955. They, however, did not do so and thereupon the respondents filed, on October 31, 1955, Interlocutory application No. 6 of 1955 (later numbered as Execution Application No. 83 of 1956) for directing the appellants to execute the sale-deed and they annexed to their application a draft sale-deed in which cls. 3 to 6 of the razinama were recited. Apparently there were disputes between the parties each accusing the other that it had not conformed to its undertaking under the compromise, but with these we are not now concerned. Thereafter the appellants filed an application in the suit on March 16, 1956 praying that a sale-deed might be executed in favour of third party to the proceedings who had agreed to purchase the property on terms of paying the full decree-amount as provided for by cl. 4 of the Razinama. This application was opposed by the respondents and there were further applications of a similar type which it is not necessary to detail except to point out that they all proceeded on the basis that the compromise decree was capable of execution without any necessity for a further suit. The appellants did not succeed in these applications. It is sufficient if hereafter attention were confined to the application by the respondents - E. A. 83 of 1956 by which they sought to get